SURESH KUMAR LAXMICHAND JAIN, MUMBAI V. ITO - 18(3)(4), MUMBAI

ITA 6004/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8358 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 20-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Reasonable cause; Set aside
• Section: 13; 131; 148

Judgement Text

INTHEINCOMETAX APPELLATETRIBUNAL MUMBAI BENCHSMCMUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER)AND SHRI MANISHBORAD (ACCOUNTANT MEMBER) ITANO.6004/MUM/2019 ASSESSMENT YEAR:2009-10 SURESH KUMARLAXMICHANDJAIN, 15/1 ST FLOOR, MULJI MAHADEVJI BLDG. C P TANK, MUMBAI - 400 002. VS. ITO-18(3)4), 608, EARNEST HOUSE, NARIMAN POINT, MUMBAI-400021. PANNO. AANPJ 9047 M APPELLANT RESPONDENT ASSESSEEBY : NONE REVENUE BY : MS. SMITAVERMA, DR DATE OF HEARING : 11/08/2021 DATE OF PRONOUNCEMENT : 13 /08/2021 ORDER PER MANISHBORAD,A.M. THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-29, MUMBAI [IN SHORT CIT(A)] FOR THE ASSESSMENT YEAR 2009-10 DATED 30.05.2017 AND ARISES OUT OF ASSESSMENT COMPLETEDU/S143(3) R.W.S.147OFTHE INCOMETAXACT,1961 (IN SHORTTHE ACT). THOUGH THE CASE WAS FIXED FOR HEARING ON 23.06.2021 & 12.08.2021, NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE BENCH ON THE ABOVE DATES. AS THERE IS NON-COMPLIANCE ON THE PART OF THE ASSESSEE, WE ARE PROCEEDING TO DISPOSE OFF THIS APPEAL ON MERITS, AFTER EXAMININGTHEDOCUMENTSAVAILABLEON RECORD. SURESHKUMAR ITA NO. 6004/M/2019 2 2. THE GROUNDSOFAPPEAL FILEDBYTHE ASSESSEE READASUNDER: 1. THE ORDER PASSED BY TEAMED CIT(A) IS GROSSLY ERRONEOUS, UNJUST AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THE LEARNED CIT(A) GROSSLY ERRED IN COMPLETING THE APPELLATE ORDER WITHOUT GIVING APPROPRIATE OPPORTUNITYOF BEING HERDTOTHE ASSESSE. 3. THE LEARNED CIT(A) OUGHT TO HAVE GIVEN DUE CONSIDERATION TO THE FACT THAT THE REGISTERED ADDRESS OF THE ASSESSE WAS CHANGED AND HENCE HE WAS NOT IN POSITION TO RECEIVETHE NOTICEISSUEDBY THECIT OFFICE. 4. THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL FILED BY THE ASSESSE AND THEREBY ALLOWINGTHEERRONEOUS ORDER PASSEDTHEAO. 5. THELEARNEDCIT(A)OUGHTTOHAVEAPPRECIATEDFOLLOWINGANOMALIESOBSERVEDBYTHE AO WHILE COMPLETING THE ASSESSMENT RESULTING FROM THE PROCEEDINGS INITIATED U/S. 148 OF THE INCOMETAXACT,1961. 6. THE ENTIRE ASSESSMENT COMPLETED BY LEARNEDAOIS BASEDPURELY ONTHE INFORMATION RECEIVED FROM MAHARASHTRA SALES TAX AUTHORITIES. THE LEARNED AO NEVER INVESTIGATED THE ISSUE NOR DID HE RAISED ANY ADDITIONAL EVIDENCE AGAINST THE ASSESSE THATMAYIMPLICATEHIM AS PART OF GROUP OFBOGUSBILLPROVIDER 7. THELEARNEDAOFAILEDTOPROVIDETHESTATEMENTGIVENBYSOCALLEDBOGUSBILLPROVIDER WHICHHASIMPLICATEDTHEASSESSEOFHAVINGOBTAINEDBOGUSPURCHASEBILLSFROMTHEM. THE AO NOT ONLY SHOULD HAVE PROVIDED WITH BASIC DOCUMENTS SUCH AS STATEMENTS OF THEENTRY PROVIDERS, COPYOF THEIRBOOKSOFACCOUNT WHEREINTHENAME OF THE ASSESSE HAS BEENSPOTTED AND ALLOTHER SUCHDOCUMENTS. 8. THE LEARNED AO OUGHT TO HAVE GIVEN CHANCE TO CROSS EXAMINE THE ENTRY PROVIDERS BASED ON WHOSE STATEMENT THE ADDITION HAS BEEN MADE. IN FACT, ANY ADDITION MADE BASED ON THE STATEMENT TAKEN AT THE BACK OF THE ASSESSE IS UNJUST AND HIGHLY AGAINST THEPRINCIPLES OF NATURAL JUSTICE. 9. THE LEARNED AO OUGHT TO HAVE APPRECIATED THE FACT THAT THE ENTIRE TRANSACTION WERE COMPLETED BY PROPER BANKING CHANNELS AND ALL THE NECESSARY INGREDIENTS OF TRADING TRANSACTIONS WEREFOLLOWED APPROPRIATELY. SURESHKUMAR ITA NO. 6004/M/2019 3 10. THE LEARNED AO OUGHT TO HAVE ISSUED NOTICE U/S. 131 OF THE INCOME TAX ACT, 1961 TO VARIOUS PARTIES WHO ALLEGEDLY HAD ISSUED BOGUS BILLS TO THE ASSESSE AND SHOULD HAVE ESTABLISHEDTHECORRECTNESSOFTHEIRSTATEMENTS.ITISWORTHNOTINGTHATTHENOTICEU/S. 131 IS SUMMON TO WITNESS WHICH IS TO BE COMPULSORILY REPLIED. INSTEAD THE AO CHOSE TOISSUENOTICEU/S.133(6)OFTHEINCOMETAXACT H 19GLANDPUTTHEONUSONTHEASSESSE TOPRODUCE THOSE ALLEGEDPARTIESBASED ON WHOSESTATEMENT HEHASMADE ADDITIONS. 11. YOUR APPELLANT HUMBLY SUBMIT THAT THE ORIGINAL ASSESSMENT MAY BE SET ASIDE AND THE APPELLANTBE GIVEN A FAIR CHANCETOREPRESENT HIMSELF ANDBE OBLIGE. 3. NONEAPPEAREDONBEHALFOFTHEASSESSEE,WEHOWEVERONPERUSALOFRECORD OBSERVETHATTHEIMPUGNEDORDERFRAMEDBYLD.CIT(A)ISEX-PARTEANDLD.CIT(A) HAS NOT DEALT ON MERITS OF THE CASE. THE ASSESSEE HAS STATED IN THE GROUND OF APPEAL THAT THE LD. CIT(A) GROSSLY ERRED IN COMPLETING THE APPELLATE ORDER WITHOUT GIVING APPROPRIATE OPPORTUNITY OF BEING HEARD. IT IS ALSO MENTIONED IN THE GROUNDSOFAPPEAL THAT REGISTEREDADDRESSOF THEASSESSEE WASCHANGED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) ALSO DID NOT RAISED ANY OBJECTION IF THE ISSUESRAISEDINTHEINSTANTAPPEAL ARE RESTORED TOTHE LD. CIT(A) FORDECIDINGTHEM ON MERIT. 5. WE THEREFORE, UNDER THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE AND ON OBSERVING THAT THE IMPUGNED ORDER IS EX-PARTE AND NOTHING HAS BEEN DEALT ON MERITSBYTHELD.CIT(A),THESAMEDESERVESTOBERESTOREDTOTHEFILEOFLD.CIT(A) FOR DECIDING ON MERITS AND PASSING A SPEAKING ORDER AFTER GIVING REASONABLE OPPORTUNITYOFBEINGHEARDTOTHEASSESSEE.WEALSODIRECTTHEASSESSEETOCOMPLY TO THE NOTICE RECEIVED AND SHOULD NOT TAKE UNNECESSARY ADJOURNMENT UNLESS OTHERWISE REQUIREDFORREASONABLE CAUSE.THUS,ALL GROUNDSRAISED INTHISAPPEAL ARE ALLOWEDFORSTATISTICAL PURPOSES. SURESHKUMAR ITA NO. 6004/M/2019 4 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCEDINTHEOPENCOURTON 13/08/2021. SD/- SD/- ( SAKTIJIT DEY ) ( MANISHBORAD ) JUDICIALMEMBER ACCOUNTANTMEMBER MUMBAI; DATED:13/08/2021. RAHUL SHARMA,SR. P.S. COPYOFTHEORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT,MUMBAI 6. GUARDFILE. BY ORDER, //TRUE COPY// (DY./ASSISTANTREGISTRAR) ITAT,MUMBAI